Stetson University School of Law’s Institute for the Advancement of Legal Communication sponsored a provocative presentation by Dr. Asao Inoue regarding anti-racist writing assessment on August 20. Though Inoue’s scholarly focus has been on the undergraduate curriculum, he directed his talk at some specific issues of legal-writing pedagogy. I posted on the Legal Writing listserv, noting:
The talk was provocative and closely examined some challenges of adapting Inoue’s approach to the law-school and legal-writing classrooms…. I have tried some of these techniques with success (and some with less success), but there is much, much more I could be doing. Thanks to Stetson (particularly Kirsten Davis and Elizbeth Berenguer) for helping re-energize me to do more.
One commenter reached out to me privately to ask which techniques I had employed that I thought worked. My first reaction is that I’m not the right person to do this because of my positionality. On reflection, lots of folks have similar positionalities and probably have similar struggles. As for that positionality: I’m a cisgender male of northern European descent, I grew up speaking American English with a northern-midwestern inflection, I’m gay and first generation in my extended family to graduate college, and I have a diagnosed mental illness (bipolar II). The professional position and possessions I have, and the authority that students attribute to me in the classroom, are as much functions of random chance and good fortune as of any hard work on my part.
Here are a couple things I do in my classes, keyed to Inoue’s list of the characteristics of white-supremacy culture on his handout. (Note: None of what I’m doing is ground-breaking or revolutionary, but it is related to Inoue’s objectives.)
1. “Only one right way”: I emphasize to students that when they are lawyers, their readers may vary dramatically in terms of their expectations. On one end is the hyper-technical “grammar slammer,” who often has pedantic pet peeves, many of which may merely be personal preferences (like never ending a sentence with a preposition). On the other end is the reader who really couldn’t care less. When I tell students to do things a certain way, I tell them they should see my preferences as representing just one audience, and they should be attentive to what their real audiences want, once they have them, and adapt to them. I also explain they may choose not to adapt in situations where they see a tactical advantage in “breaking the genre” or where their own identity is at stake (with a nod to the ethics issues associated with putting the client first).
2. “Paternalism” / “Individualism” / “Objectivity” / “Only one right way”: Students do a lot of peer review in my classes (see my Eli Review demo from last summer). We workshop those peer reviews in class afterwards, highlighting examples of students’ writing that take different approaches to the problem and still work well. Using the students’ own writing on the assignments emphasizes and values what they are bringing. I make sure to cycle through the students in my section, so almost everyone ends up on the screen eventually. That helps me look for the good in every student’s submissions. Many students (those apparently of color and apparently white) have commented that “no one has ever talked about my writing before,” because they are used the the bi-directional interaction of grader and writer. Integrating their performances with their feedback to each other into the discussion places me as a member of a conversation, not the “sage on the stage.” It emphasizes the collective nature of our learning.
3. “Perfectionism” / “Either/or thinking”: This comes closest to Inoue’s labor based grading (though I don’t negotiate it with the students, something I need to work on). I try to make as big a portion of the semester grade as possible (usually 30-35%, but I’m working on getting it up to 50% or more) consist of completion points. “Do what I tell you and you get the points.” In my view, the doing is the learning to a great extent. Our school uses a grade “curb,” not a curve: Average GPA for grades in my section cannot exceed 3.40 (just over a B+). So I tell students, “Do all the completion-grade activities and at least submit the graded written assignments, and it will be very difficult to get lower than a B-.” I hope for many students that this reduces anxiety about the final grade. The great bulk of graded assignments happen late in the semester. And if they do all the completion activities, it builds to better performance (by HOWL standards) on graded assignments. I still have to spread them out for the grade curb and because of “gunners,” so I alert them that an A or A- is really only possible if you are in the top quarter of grades on the graded assignments. I don’t know how to get around that, and I don’t think Inoue saw a way either.
I try to represent a deeply rhetorical stance, a sense of the contingency of the audience. Where I fail is in taking time for some of the hard, self-searching, soul-searching work necessary to really raise awareness of ways the dominant culture maintains and uses its dominance. For example, in the OER textbook I’m working on (that’s a whole other story), I call out issues of respect for others (Ch. 12) and indigenous sources of law (§ 13.3), but I fall back into old patterns of talking about what’s “right” or “correct” in the appendices on grammar and writing mechanics (Chs. 26 & 27). (BTW, if any reader is interested in helping me finish/revise this textbook, I would love to have a co-author. I’d like to complete it in summer 2022.) I also fail overtly to acknowledge in direct terms how the dominant culture uses race, sex, sexuality, disability and other social characteristics to maintain is dominance. I think I fear that students will push back if I go all “critical legal theory” on them. But I wonder if just trying to subvert dominant practices without being overt about them is enough. For example, I give students a bounty for finding typos in my textbook; maybe I should give them a bounty for finding places in the textbook that take an unreflective, dominant stance.
OK, enough for now. I welcome your thoughts.
-Brian